R v Sullivan

[2003] NSWCCA 100

CITATION:	R. v. Sullivan [2003] NSWCCA 100
HEARING DATE(S):	15 October 2002
JUDGMENT DATE:	11 April 2003
JUDGMENT OF:	Hodgson JA at 1; Buddin J at 57; Smart AJ at 105
DECISION:	Appeal against conviction allowed. Ordered that there be a new trial in respect of count 1 and counts 3-7 respectively.
CATCHWORDS:	CRIMINAL LAW - Appeal - Evidence by person criminally involved in offences - Discount in sentence given to that person - Liabiliy of that person to be re-sentenced - Whether extent of discount admissible - Whether discount and liability to be re-sentenced should be led in chief by Crown - Sufficiency of warning under s.165 of Evidence Act 1995 - Points not taken at the trial - Whether miscarriage of justice occurred by reason of failure to lead evidence of extent to discount and/or insufficiency of warning - Comment of Crown prosecutor, repeated by judge, that appellant had an interest to give certain evidence - No objection taken at the trial - Whether miscarriage of justice occurred.
LEGISLATION CITED:	Evidence Act 1995 s.165
CASES CITED:	Asquith (1994) 72 ACrimR 250 Booth (1983) 8 ACrimR 81 Conway & Anor. v. The Quen (2000) 98 FCR 204 Davies v. Director of Public Prosecutions [1954] AC 378 Domican v. The Queen (1992) 173 CLR 555 Ellem [No.2] (1994) 75 ACrimR 370 Gonzales-Betes [2001] NSWCCA 226 Grey v. The Queen (2001) 184 ALR 593 R v. Booth [1982] 2 NSWLR 847 R v. Booty NSWCCA 19/12/94 R v. Button [1991] 1 QdR 552 R v. Chai (1992) 27 NSWLR 153 R v. Checconi (1988) 34 ACrimR 160 R v. Chen [2002] NSWCCA 174 R v. Privett [2001] NSWCCA 518 R v. Stewart (2001) 52 NSWLR 301 R v. Yammine [2002] NSWCCA 289 Ramey v. The Queen (1994) 68 ALJR 917 Robinson (1995) 80 ACrimR 358 Robinson v. The Queen (1991) 180 CLR 531 Stafford v. The Queen (1993) 67 ALJR 510 TKWJ v. The Queen [2002] HCA 46 Whitehorn v. The Queen (1983) 152 CLR 657
PARTIES :	Regina - respondent/Crown Dennis John Sullivan - appellant
FILE NUMBER(S):	CCA 60566/00
COUNSEL:	Mr. P. Strickland for appellant Mr. L. Lampratti for respondent/Crown
SOLICITORS:	D.J. Humphreys for appellant S.E. O'Connor for respondent/Crown

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC00/31/0091
LOWER COURT JUDICIAL OFFICER :	Coleman DCJ

CCA 60566/00
DC 00/31/0091

HODGSON JA
BUDDIN J
SMART AJ

Friday 11 April 2003

REGINA v. Dennis John SULLIVAN

Judgment

1 HODGSON JA: On 17 July 2000, the appellant was indicted before Coleman DCJ at Gosford District Court on seven counts, as follows:

Count 1
That he on 26 August 1997 in Bateau Bay in the State of New South Wales being armed with an offensive weapons, namely a 12 gauge shotgun and a shortened 22 calibre rifle, did rob Laurie Spooner, Jan Atkins, Joan Stephens of approximately $6,521.00 in money, the property of Bateau Bay Bowling Club.

Count 2
That he on 25 March 1998 at Cooranbong in the State of New South Wales being armed with a dangerous weapon namely a .40 calibre Ruger pistol, did rob Glen Beletich of approximately $17,662.00 in money, the property of Glen Beletich.

Count 3
For that he on 16 April 1998 at Hawks Nest in the State of New South Wales being armed with a dangerous weapon, namely a .40 calibre Ruger pistol, did rob Edward Sheldon of certain property, namely $150.00 in money, one leather wallet, one alarm panic button, one key, one black case, the property of Edward Sheldon.

Count 4
For that he on 28 April 1998 at Gorokan in the State of New South Wales being armed with a dangerous weapon, namely a .40 calibre Ruger pistol, did rob Cheryl Hosking, Harmanna Ambury and Jodi-Ann Whittaker of $18,361.00 in money, the property of Central Coast Masonic Club.

Count 5
For that he on 8 May 1998 at Hawks Nest in the State of New South Wales being in company of Jason Evans and others, did break and enter the Hawks Nest Golf Club and did commit a felony therein, namely stealing $130.00 in money, the property of Hawks Nest Golf Club.

Count 6
For that he on 18 May 1998 at Ettalong in the State of New South Wales being armed with a dangerous weapon, namely a .40 calibre Ruger, did rob Kevin Reilly of one .38 calibre Smith and Wesson revolver and a motorola two-way radio, the property of Armaguard.

Count 7
For that he on 22 May 1998 at Dora Creek in the State of New South Wales being armed with dangerous weapons, namely a .40 Ruger pistol and a .38 calibre revolver, did rob Richard Bannerman and Lorraine Bannerman of $504.00 in money and one leather wallet, the property of Richard and Lorraine Bannerman.

2 The appellant pleaded not guilty to each count, and was tried before Coleman DCJ and a jury. On 10 August 2000, the jury returned a verdict of not guilty on Count 2, and a verdict of guilty on each of the other counts.

3 On 24 November 2000, the appellant pleaded guilty to a further charge, as follows:

That he on 9 June 1998 at Maitland whilst armed with a dangerous weapon, a .40 calibre Ruger pistol, did rob an employee of the person trading as BP Service Station Rutherford of $38,524.75.

4 On 15 December 2000, the appellant was sentenced to terms of imprisonment, which were partly concurrent and partly cumulative, with the overall effect that he was to serve fourteen years’ imprisonment from 9 June 1998, to expire on 8 June 2012, with a non-parole period of ten years to expire on 8 June 2008. The particular sentence on the count to which he pleaded guilty was six years from 9 June 1998 to expire on 8 June 2004, with a non-parole period of four years to expire on 8 June 2002.

5 The appellant appeals against his conviction on each of the counts to which he pleaded not guilty.

6 Initially, he sought leave to appeal against his sentences. However, this has been pursued only in the event that he was successful in relation to his conviction on Count 1 but not on the other counts. In the event that he were to succeed on all counts appealed against, no appeal is pressed against the sentence on the count to which he pleaded guilty.

7 The Crown case depended very heavily on evidence given by one Jason Evans, who had pleaded guilty to charges in the same terms as those against the appellant in respect of the offences alleged to have been committed on 25 March 1998, 16 April 1998, 28 April 1998, 8 May 1998, 18 May 1998 and 22 May 1998, and in respect of the offence admitted by the appellant to have been committed on 9 June 1998. Evans gave evidence to the effect that the appellant had committed all those offences with him. He also gave evidence that the appellant had told him that he and one Glen Chandler had committed the offence alleged to have been committed on 26 August 1997.

8 As noted earlier, the appellant pleaded guilty in relation to the charge of an offence committed on 9 June 1998. On that occasion, the commission of the offence was observed by police, and the appellant was arrested shortly thereafter, together with a co-offender Les Dormer, and having in his possession a Ruger pistol. This pistol was said by Evans to be the pistol used in the robberies in Counts 2, 3, 4, 6 and 7.

9 There was no issue at the trial that offences occurred substantially as described by Evans, except as regards the appellant’s participation in them. The appellant gave evidence denying his participation in any of the offences, apart from that to which he pleaded guilty. He said he was persuaded to commit that robbery by Evans, and did so because he was in a financially difficult situation, being in debt to an SP bookie for $17,000.00. He said that Evans gave him the Ruger pistol on the morning of that offence, although he also said he had seen it before, purchased ammunition for it, and used it with Evans by firing it in the bush.

EVIDENCE AT THE TRIAL

10 Evans gave detailed evidence of the robberies in which he participated, and of the alleged admission made by the appellant concerning the robbery said to have occurred on 26 August 1997. However, he admitted that he had lied many times to police, in order to distance himself from the offences; and admitted among other things that he had nominated the appellant’s son Adam, who was in fact entirely innocent, as being a party to robberies. He said that he was serving a prison sentence, having pleaded guilty to the offences to which he admitted. However, evidence that he had obtained a discount on this sentence was limited to the following:

(1) In cross-examination:
FITZGERALD: Q. And it is the case is it not that as a result of you nominating Mr Sullivan and Mr Dormer as your co-offenders and agreeing to give evidence against them, you got a substantial reduction on your sentence is that not the case?
A I did, yes..
Q. You got a 50 per cent reduction on your sentence -
OBJECTION. SENTENCE NOT FIXED BY WITNESS/UNFAIR
QUESTION. LEGAL ARGUMENT. QUESTION WITHDRAWN.'

(2) In re-examination:

Q. Mr Evans when you signed that undertaking to give evidence against Mr Sullivan and others was anything ever said to you by your legal advisers as to what may become of you if you didn't keep that undertaking?
A. Yes.

Q. What was that?
A. He told me that I could be re-sentenced.

Q. Can you recall when, in terms of your sentencing, it was that you signed that undertaking?
A. No I can't recall. I can recall where, but I can't recall the date.

Q. Where were you when you signed it?
A. I was in the cells at Newcastle Court.

Q. Just before you went up into the District Court at Newcastle?
A. That's correct.

Q. Before you were being sentenced by the learned sentencing judge on that occasion?
A. Again I can't recall the date, but around that time.

Q. Had anyone mentioned anything to you about undertakings and that sort of thing before you made the statement on 20 November 1998?
A. There had been mentions in the ERISP interviews regarding would I be prepared to give evidence and I'd said yes.

Q. When you say during the ERISP interviews which interviews do you refer to?
A. I can't recall, they were towards the end.

11 Evidence was called from victims of the offences, police and other persons corroborating details of the offences, although, except as follows, not implicating the appellant in the offences independently of Evans’ evidence.

12 There was substantial corroboration of Evans’ evidence in relation to Count 1.

13 The evidence showed that a Subaru station wagon LXV 090 was used in the robbery on 26 August 1997. A fingerprint belonging to Glen Chandler was found in this vehicle. The vehicle had been purchased from one James Harper at Berowra at about 8pm on 20 August 1997, by a person who told Mr. Harper that he had had a drink at Berowra RSL shortly before when dropped off there by a friend. Mr. Harper’s description of this person fitted the appellant well, except possibly in one respect to which I will return, but did not fit Chandler. Books produced to the Court by the Berowra RSL Club showed a signature admitted by the appellant to be his and a signature “G. Chandler”: these signatures were in different books, but next to people having the same name and address, strongly supporting an inference that they were entered at about the same time. On the basis of the position of these signatures among the signatures for 20 August 1997, the Secretary/Manager estimated them to have been entered between about 8.30pm and 9pm on that day. The appellant, giving evidence at his trial on 4 August 2000, said he could not recall going to Berowra RSL Club then or at any time in 1997, or whether he went there with Chandler, although he did say he had been there “on occasion”.

14 The respect in which the description given by Mr. Harper may not have fitted the appellant was Mr. Harper’s assertion that the purchaser had a beard. The appellant gave evidence that he was at different times bearded and clean-shaven, but that he was clean-shaven at this time in 1997. However, there was no corroboration of this evidence by an independent witness or by photographs: a gun dealer Mr. Sutcliffe gave evidence that the appellant was clean-shaven when he sold him some ammunition in 1997, but the date of that transaction would appear to have been no earlier than October 1997.

15 There was also some corroboration in relation to Count 1 provided by records of telephone calls from Chandler’s phone to the appellant’s phone at around the time of the offence.

16 One other matter at one stage apparently relied on by the Crown as providing corroboration was similarity between some of the circumstances of the purchase of the Subaru vehicle used in this robbery and the admitted circumstances of the appellant’s purchase of a Sigma vehicle which he used in the robbery to which he pleaded guilty. The person who purchased the Subaru from Mr. Harper gave a false name, said the purchase was for his son, paid in $50 bills and displayed little interest in the condition of the vehicle. The appellant purchased the Sigma vehicle from one John Cromer, and in so doing gave a false name, said it was for his daughter, paid in $50 bills, and displayed little interest in the condition of the vehicle. However, although this evidence was led without objection, before addresses the primary judge ruled that this material did not satisfy the requirements of s.101 of the Evidence Act, and therefore was not admissible as either coincidence or tendency evidence. It was not subsequently relied on by the Crown or referred to in the summing up, although there was some mention of it by the appellant’s Counsel in his address. But in any event, it cannot now be relied on as corroboration by way of coincidence or tendency evidence.

17 As regards counts other than Count 1, there was no substantial corroboration, except possibly in the following respects.

18 The Crown relied on the appellant’s possession of the Ruger pistol at the time of his arrest, and his earlier purchase of ammunition of this pistol, as corroborating Evans’ evidence that such a pistol had been used by the appellant in a number of the robberies. The Crown also suggested that the appellant’s evidence that the earlier purchases of ammunition were not for himself but for Evans was implausible. Victims of the robberies in Count 3 and Count 7 confirmed that a pistol like this Ruger had been used.

19 The Crown relied on evidence of items found at the appellant’s house having some association with a number of the robberies. For myself, I would regard that material as having little corroborative value in that it is explicable by the involvement of Evans in those robberies, in circumstances where, at material times, Evans was residing at the appellant’s house.

20 There was evidence concerning Count 3 from which it could be inferred that the appellant’s daughter gave some assistance in relation to that robbery. However, even if that inference were drawn, the involvement of the appellant’s daughter could be explained by Evans’ own relationship with the appellant’s daughter. So again, for myself I would regard that material as having little corroborative value.

21 More substantial was evidence relied on by the Crown in relation to Count 5. Evidence was led by an acquaintance of the appellant Dorothy Sonter that she received a phone call from the appellant or his wife enquiring whether a unit she owned at Hawks Nest was available from 7 May 1998 to 10 or 11 May 1998, and that she made it available for him. Phone records showed a telephone call from the appellant’s house to Mrs. Sonter at 9.32am on 7 May, and another phone call from the appellant’s house to Mr. Dormer at 9.38am on 7 May. Mr. Dormer was the admitted accomplice of the appellant on 9 June 1998, and alleged by Evans to be one of the participants in the robbery at the Hawks Nest Golf Club on 8 May 1998. Evans gave evidence of a telephone call by the appellant at this time to arrange for accommodation near the golf club, although according to Evans the phone call was to a person called “Kathy”, a name not used by Mrs. Sonter. No explanation was offered by the appellant for arranging for accommodation at Hawks Nest at that time, although the evidence was that the appellant did stay at that unit occasionally.

22 As regards Count 6, there was in evidence a note in the appellant’s hand writing recording movements of Armaguard and Brambles Security vehicles, which the appellant admitted that he had made with a view to possibly committing robberies on such vehicles; but which he said was made at about the time of the offence which he admits with a view to possible future robberies.

23 I have already outlined the broad substance of the appellant’s evidence at the trial.

COUNSELS’ ADDRESSES

24 In his final address, the Crown Prosecutor drew to the jury’s attention the fact that Evans had obtained a discount on his sentence in return for undertaking to give evidence against the appellant as follows:

Now you heard Mr Jason Evans, you heard his evidence given in the first and second weeks of this trial. You heard him admit quite freely, quite openly that he had lied many times to the police. He told you the reasons why he lied, to distance himself from the offences themselves. You heard him admit freely that he had nominated other people as being parties to those offences, and in fact substituting Adam Sullivan as one of the parties where in fact it was him that was responsible. You heard him freely admit that there were occasions in the past where he had exaggerated matters.

And they are all things that you must take into account. You would also take into account of course that Mr Evans got a discount on sentence when he was dealt with by the courts. And while I am on that, I might just say this members of the jury that there is legislation in place in New South Wales that provides that where a person does enter a plea of guilty, as Mr Evans did, where a person offers to give evidence in terms of the alleged co offenders, then a court, a sentencing court in those circumstances is bound to afford a discount to the person in that situation.

25 He also addressed the jury in relation to the appellant’s evidence that he did not have a beard in August 1998, as follows:

Now while we are on the accused's appearance, the accused told you last Friday that he did not have a beard in August of 1997. Of course he has got an interest in telling you that, that serves his purposes very well you might think to tell you that he was not bearded. Of course in saying that, he is attempting to distance himself from the suggestion that he was the one who purchased the car, because he knows very well you might think that if the Crown can establish that he did in fact purchase that car, then the Crown is a long way to confirm that he was one of the perpetrators of the offence at Bateau Bay.

Now what have you got, what have you got in this case that confirms the accused's account that he was not bearded at that time. What you do have members of the jury is evidence in this case that there were times when the accused did in fact shave his beard off and grew it back again. He is a man, you might think, who is in a position of being able to alter his appearance if he wished to and we’d ask you to bear that in mind in relation to the assertion that he makes that he wasn't beared in August of 1997, because there is nothing before you to confirm that. No photograph, no witness has come along to say that he was bearded in August of 1997. All you have really is the evidence of the accused on that point.

26 The appellant’s Counsel concluded his address to the jury with the following submissions concerning the credibility of Evans:

You see, Mr Evans said, and you will see the cross examination, I will not take you through the whole of that, my friend said three and a half days, it seemed a lot longer than that to me. But in any case, my friend points out that there were cross-examination made of Mr Evans in which he conceded his lies. Well he conceded more than that you will recall. He conceded that he saw his ability to lie as something of a skill. Do you recall that? It was a talent, to use my words, in trying to outsmart police. "I thought I had, yes I thought I'd still outsmart them. I thought I was a step ahead". You will recall that sort of phraseology peppered throughout the whole of cross-examination. He had an ability to fool his audience. It was only when his audience were able to go away and make independent scientific or whatever investigations and come back and re-challenge him that he was in some way brought undone. It was only when he was finally faced with the fact of matters that he made admissions and not until then. “I wasn't going to plead guilty to anything. I wasn't going to admit anything". He had the ability, you might think, proudly conceded to me, of, as he was asked a question, talking as he made up a lie and incorporating in that lie some truth with the lie.

Has he outsmarted you ladies and gentlemen? That's a question that you would ask yourselves. Is that what's happened? Is that what's happening? You can only be satisfied that he has or has not by looking at the whole of the evidence.

You see, he's not only an opportunistic liar such as the situation with the roadside at Hawks Nest when he was the cockatoo, he's a manipulative liar. You will recall how he put Adam Sullivan into an offence, and only took him out when the facts wouldn't stand it. He put Les Dormer into his place. While he was giving evidence to you he put Mr Skinner's gun at the house. He is a manipulative and opportunistic liar. There is no better description for him. He was prepared to lie to the police from the word go.

You will recall that he conceded a large number of interviews with police. The first two on 31 July 1998 and he said then - "Yes I lied. I thought I could get away with it". Words to that effect. You will recall better than I. On 14 August he gave three records of interview. That was after the Taskforce had been formed. He was interviewed by the most experienced officer, that most experienced officer, Detective Chaffey. He lied. He lied once, twice, three times at length over a number of hours to those police. And what was the ultimate of that lie? The ultimate was the police accepted and put him in protective custody because he was going to give evidence in that effect. You recall Detective Chaffey said that. Put in protective custody on 14 August and we know he was lying because he's conceded he's lying. Not as I say through some pang of conscience but because he's now told a story that contradicts those lies and so he's either caught out. He's either lying to you or he's lied before. So it's easier for him because of benefits he received and penalty that he might suffer if he does not, to stick to the most recent story. But to get there you will recall that he lied on 24 August, he lied again that afternoon of the 24th. He lied on the 25th, he lied on the 10th and he came to a conclusion again on 10 September 1998, and that conclusion is the story he presents to you, somewhat refined, there are two further statements you will recall I put to you, somewhat refined. And he tells you that story, he tells you that tale, having received the benefit and I concede, as my friend properly puts to you, that there is in Legislature the benefit must flow to him in his plea of guilty and his offer to assist. You will recall that he gave that undertaking at the 10 September. He already knew of this while he was lying because on 14 August prior to all these other lies that I've just catalogued, held already given an undertaking to police "Yes I'll tell that story in court. I’ll give the evidence against Mr Sullivan to that effect" but when he finally gives evidence it's not to that effect at all. And you know that he would suffer a penalty if he does not. He said in answer to questions from my friend he understood that he would be re-sentenced if he did not. If he did not stick to that story. If he did not give evidence against Mr Sullivan the way he'd told the police it was, the final time, the final time, he would be re-sentenced.

How many times - you will have better count than me perhaps - how many times did he say to me "Why would I lie to this jury?" and how many times did I say "We'll get to that. We'll come to that. We'll get to that Mr Evans”? Well we got to it. The lie is born of the benefit he received, Legislature or no, it's born of the benefit he received, and it's maintained by the penalty, to use my words, that he would suffer in re-sentence. If he recanted on it now. And it is honed, he has told you how he's had his statement, it is honed and refined and delivered to you with a confidence, with a memory, that outweighs commonsense, in my respectful submission. He says “I lied before. I’m telling you the truth now". Well I said to him, you might recall, words to the effect "Is that a lie?", because how can we be sure. "how can you know", I asked him "How can we know when you're telling the truth and when you're telling lies? How can we know?". It is his skill, it is his talent that he and it's a matter for you - that I submit to you that he took so proudly to his bosom that he can tell a lie and convince his audience, and it's only if they get a chance to go away and conduct investigations, which you wouldn't have an opportunity to do, that he then perhaps might come undone.

If it is bold of me to ask you this question, I nonetheless ask it again, "has he outsmarted us?" you might ask yourselves ladies and gentlemen, because you know one of the first things he said, his Honour asked a question, I can't recall exactly where it was, but he said he was playing the game. Is this a game? These are serious criminal offences. These are serious, this is a court of law. Mr Dennis Sullivan's whole circumstances are on the line here on the evidence, in my respectful submission, of Mr Evans. You must be satisfied beyond reasonable doubt. You must be, before you can proceed against Mr Sullivan in a finding of guilty on any of these counts.

This is not something that he has lied in the past. He has from time to time lied in the past. He has a serious history of exaggeration and lying. He conceded his psychiatric care for that, psychiatric attendance for that. This is not a matter that he conceded to lay his soul bare to you. He conceded it because he knew he would be caught out if he did not. So serious has he been a liar, not some fibber that we might all know, or someone who exaggerates from time to time, who says it was a better night than it was or their car's a bit faster than it really is, or they've got a dollar or two more in the bank than they really have, or they - whatever. He's not someone who might gild the lily and we might excuse him, he is a liar who required treatment. He is a persistent liar. A practised liar. He persists in his lies, not a lie that he told occasionally in the past that he now comes to confess, it is his history, it is his skill, it is his personality. You cannot rely upon him.

Ladies and gentlemen, they are the matters that I put before you.

I would only finish by asking you once again to take a view of the whole of the evidence. Look at the whole of the Crown's case.

The way that you do that, of course, you are the sole judges of the fact is a matter for you but might I suggest that you take Mr Evans out of the equation and look at every minute - minute - piece of evidence and say to yourself, "how does that connect Dennis Sullivan with any of these robberies?" And the answer will always be, only because Jason Evans says so. Only because Jason Evans says so. Because otherwise, if Jason Evans does not say so, there is no evidence that would convince you beyond reasonable doubt that Dennis Sullivan was involved in any of these matters and you could not be convinced, beyond reasonable doubt, on the evidence of Jason Jeffrey Evans. He is a liar.

TRIAL JUDGE’S SUMMING UP

27 The trial judge gave the following directions concerning the evidence of Evans:

However, in relation to each of the offences charged, there is one witness who is essential to the proof of the Crown case, namely Jason Evans, and you should therefore examine and scrutinise his evidence with great care before you decide that a verdict of guilty should be brought in if at all in relation to each of the offences, and you should only find the accused guilty if you are satisfied beyond reasonable doubt of the truth of the evidence of Jason Evans.

Now the fact that I have given you that warning does not mean that I have formed any view as to the honesty or reliability of Jason Evans. It is a warning that would be given in any case where the Crown cases depended upon the evidence of one witness.

However, I just also further warn you that the evidence of Jason Evans may be unreliable because of the admitted lies that he told. Jason Evans admitted in his examination in chief and in cross-examination that he lied repeatedly to the police in his first nine ERISPS, and that he did so to distance himself from any involvement in these offences, and when forced to admit that he was involved, to minimise his involvement and also lied at times with the intention of substituting other people for himself in connection with the offence, and also lied to implicate Adam Sullivan in an offence in which Adam Sullivan was not involved.

Because Jason Evans has lied to you in this way and for these purposes, his evidence may be unreliable. I am not suggesting ladies and gentlemen that it is unreliable. It is a matter for you as to whether it is unreliable or not. And I will repeat, the fact that I've given that warning does not mean that I have formed any view as to the reliability of Jason Evans as a witness.

Jason Evans was also involved directly as an accomplice in the commission of six of the seven offences charged in the indictment against the accused. That is the second to the seventh counts inclusive. Because he was criminally concerned in those offences, his evidence may be unreliable. Because he was an accomplice in each of the particular offences that I've specified, I must warn you that his evidence may be unreliable.

Over the years the courts have accumulated a great deal of experience concerning the reliability of evidence given by accomplices, and that experience would not generally be known to you as members of the general public.

That experience has shown that evidence by accomplices is often unreliable. I do not intend to suggest to you that the evidence of an accomplice is always unreliable. My purpose in giving you this direction is only to warn you that the evidence of Jason Evans as a person criminally concerned in the commission of these particular offences, as an accomplice, may be unreliable. And for that reason alone, you must approach that evidence with considerable caution.

But I repeat the fact that I have given you that warning does not mean that I have formed any view as to the honesty or reliability of Jason Evans.

There are no doubt many reasons why the evidence of an accomplice may be unreliable. It is only natural you may think that an accomplice may want to shift the blame from himself onto others, and to justify his own conduct. In the process, the accomplice may construct untruthful stories which tend to play down his own part in the crime and to play up the part of others in that crime, even to blame quite innocent people. Experience has shown that once having given a version to the police, the accomplice may feel that he is locked into that version, and that he is bound to relate the same version when giving his evidence.

Jason Evans has pleaded guilty and has been sentenced for his part in the offences apart from the Bateau Bay incident. He pleaded guilty and you will remember he was not involved on his evidence in the Crown case in the Bateau Bay incident. He pleaded guilty and because he undertook to give evidence against the accused the sentencing judge was obliged by law and by an Act of Parliament, to take that into account and reduce the penalty which would otherwise have been imposed.

Counsel for the accused has submitted that this was an advantage which Jason Evans obtained by telling lies, and falsely implicating the accused, and that he is now locked into his story and has used the long statement which he made to police in November 1998 as a script and is now bound to relate the same version when giving his evidence, a matter which you will recall Jason Evans denied when he was cross-examined on it and in which he said he was telling the truth as he remembered it.

In the course of his cross-examination, on the several ERISPS that he gave, Jason Evans agreed that his aim was to minimise his own role and only to admit what he was forced to admit and he agreed that he told lies to establish untruthful stories which tended to play down or minimise his part in the crime, and to play up the part of others and even to blame an innocent person.

You will remember that the cross-examination showed that as each of the first nine ERISPS was given, Jason Evans continued to attempt to outsmart the police as he described it, and then by telling them lies, and only admitting what he had to admit and he said that his aim was to distance himself from any involvement in the charges.

But he said that by the time the tenth ERISP he realised that it was time to tell the truth, but even so, he was then only prepared to admit what the police could demonstrate that they already knew.

Now ladies and gentlemen the fact that I have given you those warnings concerning the reliability of Jason Evans' evidence, I repeat, does not mean that I have formed any view whatsoever and if you suspect that I am hinting that I hold an opinion in relation to his evidence, you must disregard what you suspect that opinion to be. I am expressing no opinion at all.

28 He said the following in relation to the Crown’s submission about the appellant’s evidence about not having a beard:

The Crown Prosecutor said that he wanted to highlight the areas of the evidence which went to support the account given by Jason Evans and he then went to the Bateau Bay Bowling Club robbery and to matters which he said supported that account. I have already taken you, ladies and gentlemen, to the submissions he made concerning the purchase of the vehicle which was used in the robbery from Mr Harper and the inferences which you can draw from it. He submitted that there was a wealth of evidence to support the evidence given by Mr Evans that implicate the accused in the commission of the offence. He said that after making submissions concerning the use of the identikit or the penri picture that the accused told you last Friday in evidence that he did not have a beard in August 1997 and he said to you that the accused had an interest in telling you that because that served his purposes very well, that you might well think that he was not bearded and the Crown put to you that in saying that he was attempting to distance himself from the suggestion that he was the one who purchased the car because the Crown put to you he knew very well that you might think that if the Crown can establish that if he did in fact purchase that car then the Crown had gone, a long way to confirm that he was one of the perpetrators of the offence at Bateau Bay.

29 Following that part of the summing up, there was the following exchange between the trial judge and the appellant’s Counsel:

FITZGERALD: Your Honour, in putting to the jury the accused replied through me as to inferences, your Honour said “the accused told you that he was unshaven at that particular time."
HIS HONOUR: Yes.

FITZGERALD: And, indeed, the evidence was that he was shaven. Clean shaven.
HIS HONOUR: I thought you said in your address that he was unshaven.

FITZGERALD: No, your Honour, I put to the jury that he was clean shaven, without a beard.
HIS HONOUR: Yes, what did I say?

FITZGERALD: Unshaven.
HIS HONOUR: Wasn't that clean shaven?

FITZGERALD: I would have thought unshaven, without a shave indicates a beard, your Honour. Shaven indicates without a beard.
HIS HONOUR: I will correct that.

FITZGERALD: Thank you, your Honour. There was only one other thing.
HIS HONOUR: Clean shaven as at, what date was that?

FITZGERALD: The Bateau Bay --
HIS HONOUR: No, no, that was at the purchase of the vehicle.

FITZGERALD: Yes, your Honour.


It would appear that that exchange did not lead to any further direction on the matter, apparently because it became clear that the judge had used the words “clean shaven”.

GROUNDS OF APPEAL

30 The appellant relied on the following grounds of appeal:

1. The address to the jury by the Crown Prosecutor gave rise to a miscarriage of justice.

2. A miscarriage of justice occurred by reason of the trial judge's repetition of impermissible comments made by Crown Prosecutor during his address.

3. The directions given by the learned trial judge in relation to the unreliability of the witness, Mr Evans were inadequate.

In supplementary submissions provided by leave after the hearing of the appeal, the appellant sought leave to rely on a fourth ground of appeal, as follows:
4. A miscarriage of justice arose because of the failure, either by the Crown Prosecutor or by the appellant's trial counsel, to adduce evidence that (a) Jason Evans received a substantial discount because of his willingness to give evidence in accordance with his undertaking; and (b) he risked losing that substantial benefit if he did not give evidence according to final statement to the police.

31 The third ground of appeal relates to s.165 of the Evidence Act 1995, which is in the following terms:

165(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:
(a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies,
(b) identification evidence,
(c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like,
(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding,
(e) evidence given in a criminal proceeding by a witness who is a prison informer,
(f) oral evidence of official questioning of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant,
(g) in a proceeding against the estate of a deceased person---evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive.
(2) If there is a jury and a party so requests, the judge is to:
(a) warn the jury that the evidence may be unreliable, and
(b) inform the jury of matters that may cause it to be unreliable, and
(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.
(4) It is not necessary that a particular form of words be used in giving the warning or information.
(5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury.
(6) Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child's evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165B.

EVIDENCE ON APPEAL

32 Evidence was led for the appellant from his Counsel at the trial, as follows:

4. In relation to the first and second grounds of appeal, my failure to object to or seek a direction from the trial judge in relation that part of the Crown Prosecutor’s address where he said that the accused had an interest in telling the jury that he did not have a beard, was an oversight on my part.

5. In relation to the third ground of appeal, my failure to seek a redirection the trial judge that Jason Evan's evidence may be unreliable because if he failed to fulfil his undertaking to the Crown to give evidence, his sentence may have been increased, this was also an oversight on my part.

33 This Court was also informed that the actual extent of the discount obtained by Evans for undertaking to give evidence against the appellant was a discount of 50% of a starting point of fifteen years, giving a benefit of seven years six months. That matter was not placed before the jury.

SUBMISSIONS

34 In relation to Ground 3, Mr. Strickland for the appellant submitted that a proper direction and warning under s.165 was crucial because of the importance of Evans’ evidence to the Crown case. Mr. Strickland submitted that there were clear defects in what the trial judge said: he did not tell the jury that Evans could lose the benefit of his reduction in sentence if he did not give evidence in accordance with the undertaking he had given, and he did not tell the jury the reasons why Evans’ evidence might be unreliable on that account: see R v. Stewart (2001) 52 NSWLR 301, R v. Yammine [2002] NSWCCA 289.

35 Mr. Strickland submitted that the circumstance that the reduction of sentence and the possibility of re-sentencing had been mentioned in evidence and in addresses was insufficient. The point needed to be given the imprimatur of the judge: Domican v. The Queen (1992) 173 CLR 555. The jury were not even in addresses given the reasons why this might cause unreliability. These defects were significant, particularly where the jury did not even know that Evans had received a discount of 50% amounting to a benefit of seven years six months.

36 Mr. Strickland submitted that the Crown had a duty to place before the jury evidence of the quantum of the discount received by Evans, or at least evidence that Evans had received a substantial discount on his sentence. To the extent that R v. Privett [2001] NSWCCA 518 decided that evidence of actual sentences received by an accomplice is not admissible, that case should not be followed. The absence of this evidence, Mr. Strickland submitted, caused a miscarriage of justice: TKWJ v. The Queen [2002] HCA 46.

37 Turning to Grounds 1 and 2, Mr. Strickland submitted that it would be an error for a trial judge to say that the accused had an interest to give evidence in such a way as to avoid conviction: Robinson v. The Queen (1991) 180 CLR 531, Stafford v. The Queen (1993) 67 ALJR 510, and Ramey v. The Queen (1994) 68 ALJR 917. The Crown Prosecutor was also forbidden from making such a comment: Asquith (1994) 72 ACrimR 250, R v. Booty, NSWCCA, 19/12/94, and Ellem [No.2] (1994) 75 ACrimR 370. These cases proceeded on the principle that it was wrong and unfair to discount the evidence of the accused because of the accused’s interest in the outcome of the trial, in particular in that it tended to undermine the presumption of innocence: cf. Robinson (1995) 80 ACrimR 358 at 360.

38 As regards r.4 and the proviso, Mr. Strickland submitted that the evidence of the appellant’s Counsel showed that it was an oversight not to raise these points below, so that there was no element of tactics involved here. He submitted that both errors were significant, and that the appellant had lost a reasonable possibility of acquittal.

39 Mr. Lamprati for the Crown submitted, in relation to Ground 3, that what was critical was not the form of what was said, but that the jury should be alerted to something they may not be aware of. In this case, the evidence and the submissions ensured that the jury were aware that, if the appellant did not give evidence according to his undertaking he was liable to be re-sentenced, that is, that he was liable to have his sentence increased. In all the circumstances, even if there were a technical error in the summing up, it was, having regard to the extent to which the possible unreliability of Evans had been drawn to the jury’s attention and the corroboration in the case, it was not a material error; and in any event, r.4 and the proviso justified dismissal of the appeal.

40 Mr. Lamprati did not submit that evidence of the amount of the discount received by Mr. Evans could not have been led, referring to Booth (1983) 8 ACrimR 81, Gonzales-Betes [2001] NSWCCA 226, and R v. Chen [2002] NSWCCA 174; and he accepted that the Crown was obliged to disclose to the defence material relevant to the involvement of a Crown witness in the events the subject of the charge (Grey v. The Queen (2001) 184 ALR 593); but he submitted that the Crown had no obligation to lead this evidence before the jury.

41 In relation to Grounds 1 and 2 also, Mr. Lamprati submitted that there was no material error, and in any event, r.4 and the proviso justified dismissal of the appeal. The circumstance that the appellant’s Counsel overlooked the point confirmed that it was not such to have rung alarm bells, and not such as to be material in the overall circumstances of the case. Again, he submitted that r.4 and the proviso would in any event justify dismissal of the appeal. Mr. Lamprati submitted that these grounds affected only Count 1.

DECISION

42 It is convenient to consider the submissions first in relation to Count 1. It was submitted by Mr. Strickland for the appellant that, if the appeal succeeded in relation to Count 1, this would taint the convictions on all counts, even though Grounds 1 and 2 of the appeal directly related only to Count 1. During argument, the Court indicated a tentative view in favour of that submission: the conviction on Count 1 would have been devastating to the appellant’s credibility in relation to the other counts, and supportive of the credibility of Mr. Evans in relation to the other counts.

43 Looking first at the fourth ground, for which leave to amend was sought, in my opinion the evidence as to the actual amount of the discount received by Evans was admissible. I do not read Privett as deciding that in no case are the details of such a discount admissible. In that case, there was evidence before the jury that if the witness in question pleaded guilty to certain break and enter charges and promised to give evidence against the appellant on a murder charge, a murder charge against him would be dropped; and that his understanding was that for the break and enter charges he would not receive a jail sentence. In those circumstances, the view of the trial judge, upheld by the Court of Criminal Appeal, that further details were irrelevant, was a reasonable one. However, this does not mean that in a case such as this, where a judge sentencing the witness has said that he was reducing a sentence from fifteen years to seven and a half years on the basis of an undertaking to give evidence, so that the witness was at risk of imprisonment for a further seven and a half years, evidence of this was irrelevant. In my opinion, consistently with Booth, Gonzales-Betes and Chen, this evidence was in my opinion relevant and admissible. I agree with the further comments of Smart J on this matter.

44 The cases of Gonzales-Betes and Chen suggest that the Crown prosecutor should lead evidence of the status of a witness who was involved in the offence in question and has received some benefit for giving evidence against the accused; and I do not question this. Furthermore, it is clear that the Crown must disclose to the accused full particulars of this benefit. There is however a question as to how much detail about the benefit the Crown should lead in evidence. In my opinion, the Crown prosecutor has a considerable area of discretion here, and it is permissible for the Crown prosecutor to lead this evidence at a level of some generality, and leave it to the accused, who has been given the details, to explore those details in cross-examination to the extent and in the way that the accused might choose.

45 In this case, there is no suggestion that the information was not disclosed to the appellant. In those circumstances, I do not think the lack of detail in the material led in evidence could of itself vitiate the trial and conviction. The fact of the benefit should have been led in chief from Evans, rather than being elicited in cross-examination and re-examination; but again I do not think that is a matter that could vitiate the trial and conviction. The Crown prosecutor should not have objected to the question in cross-examination directed to revealing the extent of the discount, and it is difficult to understand the reason for this objection: perhaps it arose from a misunderstanding of the effect of Privett. However, the question was not pressed, and there was no erroneous ruling by the trial judge. In those circumstances, whether or not r.4 of the Criminal Appeal Rules strictly applies, I do not think this ground can succeed unless the appellant establishes that a miscarriage of justice has occurred.

46 Plainly, the material in question does not satisfy the requirements for fresh evidence: it was available to be led by the appellant. The question must be whether the failure of the appellant’s Counsel to press the question objected to or otherwise lead this evidence gave rise to a miscarriage of justice: see TKWJ v The Queen [2002] HCA 46. Plainly, in my opinion, it was not of such seriousness to make it an unfair trial, with the consequence that, according to the analysis of McHugh J in that case, it would be unnecessary to consider whether the appellant lost a real chance of acquittal. The question must be whether it otherwise caused a miscarriage. The analysis in TKWJ suggests that this may be so where there are objectively no possible tactical or other reasonable grounds for not leading the evidence, and the failure to lead it involved the loss of a real possibility of acquittal. In my opinion, in this case there does not appear to be any tactical or other reasonable ground for not leading this evidence, giving rise to the question whether failure to lead it involved the loss of a real possibility of acquittal. I will return to this question later.

47 Turning to Ground 3, there was in my opinion a failure to comply with s.165 to the extent identified by Mr. Strickland: cf. R v. Stewart (2001) 52 NSWLR 301. However, the point was not taken below, and in my opinion r.4 means that leave is required for the appellant to rely on this ground. I do not think the defect was such as to render the trial unfair, so again I think the real question is whether the defect was such as to involve a miscarriage in the sense of the loss of a real possibility of acquittal. I will return to that question later.

48 Turning to Grounds 1 and 2, I think the submission of the Crown Prosecutor concerning the interest of the appellant to give evidence to avoid conviction did contravene the cases referred by Mr. Strickland. However, I am by no means satisfied that the error was such as to amount to an irregularity that could justify intervention by this Court.

49 The point of the comment was to remind the jury that this was not a disinterested piece of evidence by the appellant, in the sense of evidence not being seen by the appellant as having any bearing on his defence. In my opinion, there would have been no problem in pointing out that there was no independent corroboration of the appellant’s evidence that at this particular time he did not have a beard and/or in suggesting that the appellant’s evidence to this effect should be approached having regard to the same considerations as the remainder of his evidence.

50 I think it unlikely that the submission that was made would have had any more detrimental effect than the direction that could properly have been made. Certainly, it was not sufficient to make the trial unfair. Again, I will consider subsequently whether it could be considered as having involved the loss of a real possibility of acquittal. As before, no point was taken at the trial, so r.4 means that leave is required for the appellant to rely on these grounds also.

51 Turning to the question of whether the appellant lost a real chance of acquittal, in my opinion evidence of the quantum of the discount together with a full direction in accordance with the requirements of s.165 could have made a difference to the way the jury approached its consideration of Evans’ evidence; that is, it could have made the jury more hesitant and circumspect in accepting it. Furthermore, I think this difference may have been more than a trivial or immaterial difference. On the other hand, I think the difference would have been incremental to weighty factors already before the jury which strongly affected the credibility of Evans. However, this incremental difference may in effect have been the “last straw”, and if there had been no corroboration I would have considered the defect enough to mean that the appellant had lost a real chance of acquittal.

52 However, in relation to Count 1, there was very strong corroboration. There was powerful evidence that the appellant was at Berowra RSL with Chandler at about the time the car used in the robbery, which had Chandler’s fingerprints on it, was purchased in Berowra by a person who told the vendor that he had just been at Berowra RSL. The purchaser generally fitted the appellant’s description but did not fit the description of Chandler. If the appellant was not involved in that purchase, these would be extraordinary coincidences; not, I should add, coincidences of the type to which s.98 of the Evidence Act applies. It could be said that, if the appellant was going to Berowra to buy a car in a false name, it is most unlikely that he would put his correct name in the RSL book and tell the vendor he had been drinking there. But even taking that consideration into account, it seems to me that, in the absence of any explanation from the appellant, the evidence that it was the appellant who purchased the car is extremely powerful. And if the appellant purchased the car, the inference is almost inevitably drawn that he was involved in the robbery.

53 The vendor’s evidence that the buyer was of a description which fitted the appellant was subject to the question of whether or not the appellant had a beard at the time; but I do not think the possible misdirection on that matter would have had a material impact.

54 Having regard to these considerations, and the incremental nature of the difference that the evidence of the quantum of the discount and a full s.165 direction would have made, I am not satisfied that the appellant has lost a real chance of acquittal in relation to Count 1. In relation to Ground 4, this means that the ground fails. In relation to the other grounds, I would not give leave under r.4.

55 Turning to the other counts, there was, in relation to these counts, less significant corroboration. However, the conviction on Count 1, which is upheld, was devastating to the appellant’s credibility and supportive of Evans’ credibility. Having regard to that consideration, I am not satisfied that the appellant has lost a real chance of acquittal on the other counts or any of them, and the same result follows as for Count 1.

CONCLUSION

56 For those reasons, in my opinion the appeal against conviction should be dismissed. In those circumstances, there is no occasion to consider the appeal against sentence.

57 BUDDIN J: I have had the advantage of reading the judgment of Hodgson JA in draft form. I am in substantial agreement with what his Honour has said in respect of grounds 1 and 2 and wish only to add the following remarks.

58 Hodgson JA has set out the comments made by the Crown Prosecutor in his final address and the trial judge’s repetition of those remarks in his summing-up. Since Robinson v The Queen (1991) 180 CLR 531 the Courts have, on a number of occasions, had reason to consider complaints of a kind not dissimilar to those which were made in the present case. It is true that the remarks in the present case did not go so far as to contain the vice which emerged in Robinson in which the trial judge said inter alia, that “you might think…that the accused had the greatest interest of all the witnesses…and that, therefore, you should scrutinise his evidence closely.”

59 Nevertheless the High Court said that “to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person. Except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence for the Crown.” (at 536)

60 In Stafford v The Queen (1993) 67 ALJR 510 the High Court, in refusing special leave, said:

It follows from the decision of this Court in Robinson v The Queen [No 2] (1991) 65 ALJR 644, that a trial judge should not direct the jury that the “interest” of an accused in the outcome of his or her trial is a “factor” to be taken into account in assessing his or her evidence. Nor should a trial judge direct the jury to the effect that, in assessing the evidence of all the witnesses, they should take account of their relative interests in the outcome. Any direction which directly or indirectly requires or invites an assessment of the reliability of the evidence of the accused or the relative reliability of the evidence of the accused and other witnesses by reference to interest or lack of interest in the outcome of the trial is likely to be understood by the jury as a direction or invitation to discount the evidence of the accused who will inevitably be seen as having a greater interest in the outcome of the trial than any other witness. That is what the decision in Robinson was directed against.

Ordinarily…it is preferable that a trial judge refrains from directing attention to the interest of the accused in the outcome of the trial as a relevant factor in assessing the reliability of his or her evidence. If the circumstances of a particular case are exceptional and require some reference to the accused’s interest in the outcome as a matter of fairness to the accused, it should suffice to inform the jury that they must approach the case on the basis that the accused is presumed innocent of the acts which are the subject of the indictment and that it would be wrong and unfair for the jury to discount the evidence of the accused simply for the reason that, as the accused, he or she has a particular interest in the outcome of the trial. (at 510-511)

61 In my view the appellant has demonstrated that there was a contravention of the principles enunciated in Robinson, Stafford and the cases which follow them and to which Hodgson JA has referred. The remarks should not have been made and error has been established.

62 Grounds 3 and 4 can, in a sense, be dealt with together although it is more convenient to deal first with Ground 4.

63 Hodgson JA has addressed in some detail the issues which are raised by these grounds. His Honour has in particular referred to submissions which were made concerning the quantum of the discount which was received by Mr Evans.

64 It is common ground that material of the kind that is now in question must be disclosed to an accused person prior to trial. See Grey v R [2001] 184 ALR 593. Such a duty of disclosure is reflected in the Prosecution Policy and Guidelines issued by the Office of the Director of Public Prosecutions (NSW). The duties of a prosecutor to disclose relevant material also finds voice in the New South Wales Barristers’ rules.

65 The obligations of a Crown Prosecutor in relation to the calling of evidence has been the subject of much judicial comment. In Whitehorn v The Queen (1983) 152 CLR 657, Deane J said:

…In performing his function of presenting the case against an accused, [a Crown prosecutor] will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one. (at 663-4)

66 Dawson J said the general obligation cast upon the Crown Prosecutor is “to act fairly in the discharge of the function which he performs in a criminal trial. That function is ultimately to assist in the attainment of justice between the Crown and the accused.” (at 675)

67 The Crown case depended very heavily for its acceptance upon the evidence of Mr Evans. He was also, upon his admission, an “accomplice” of the appellant in respect of six of the seven counts upon the indictment. The law has traditionally, for good reason, treated the evidence of “accomplices” as being inherently suspect. To give effect to that concern, trial judges have long been required to warn juries of the dangers of acting upon the evidence of accomplices. See Davies v Director of Public Prosecutions [1954] AC 378. See now Evidence Act (NSW) s 165(1)(d). It may be noted that the expression “accomplice” does not appear in the Act.

68 In R v Booth [1982] 2 NSWLR 847 this Court was concerned with a challenge to evidence led on behalf of the Crown that two co-accused of the appellant had pleaded guilty to, and had been dealt with for, the same offence for which the appellant was on trial. Street CJ said:

It is then contended that the Crown went too far by adducing evidence going beyond the mere fact that the witness was an accomplice. It is said that it is not open to the Crown to establish, as did the Crown in the present prosecution, that the putative accomplice has been charged in relation to the matter in question and dealt with. I leave aside consideration of how that might be proved without going to the length that the present evidence went to. It seems to me that the conclusion is inescapable that the full nature of the position of the witness as an accomplice is necessarily opened up as a relevant matter for evidence, so that the jury may be able to give proper meaning and carry properly into effect the warning which the trial judge is required to give them . Quite plainly, it would be of more significance in the jury's mind in evaluating the effect of the warning if it knew that the accomplice was still awaiting being dealt with. Equally, if an accomplice has been dealt with, the effect of the judicial warning can then be related by the jury to the determination of the weight which they will give to the evidence of the accomplice

It is well recognized in practice that accomplices should normally be finally dealt with before being called to give evidence in support of the Crown. It will rarely arise in practice that an accomplice who has not been finally dealt with, or who perhaps may not have received a pardon or otherwise has had his position finalized, will be called to give evidence. But the comparative rarity of the situation does not necessarily preclude the investigation, as a relevant subject matter, of precisely what may be the individual status of the particular accomplice whose evidence is being tendered, and in respect of whom the judge in due course must give to the jury a warning in relation to his evidence . It may be desirable in clear cases that the warning be given when the evidence is tendered, but this is a matter for the trial judge. (at 849-50) (emphasis added)

69 Lee J said:

The direction which practice requires a judge to give when an accomplice gives evidence for the Crown is intended to achieve a particular purpose: namely to bring to the attention of the jury that the evidence of such a witness may be in a different position from the point of view of reliability from that of other witnesses. The trial judge is expected to bring home to the jury that it is dangerous to convict on the uncorroborated evidence of such a witness; and this direction has the consequence that the witness is, in a real sense, held up as a witness whose testimony is suspect. It is left to the jury to appraise the evidence of the witness in the light of the warning given.

In my opinion the requirement that the judge give the direction and that the jury then assess the witness's evidence in the light of that warning provides the justification for the admissibility into evidence of evidence showing the position of the accomplice vis-à-vis the Crown which is the party calling him. In order for the jury to assess the degree of danger involved in evaluating his uncorroborated testimony, it is necessary for the Crown to disclose whether the witness has for instance been offered or granted a pardon, or whether it is not intended to proceed against him, or whether in fact he has been charged with an offence arising out of or related to the matter with which the accused is charged. Such evidence, in my opinion, goes to the witness's status as an accomplice, and that is a relevant matter for the jury to consider. It is particularly relevant in regard to the extent to which the evidence of that accomplice can be called upon to found a conviction of the accused.

In this State, the practice is, when the Crown intends to call an accomplice, for the judge to sentence the accomplice, if he is charged, and to do that before he is called; and I would say that that practice is one which should be followed in all cases, unless there are the most cogent reasons for not so doing. By following that practice and disclosing to the jury that the accomplice has been dealt with means that the jury are not placed in a position of speculation in regard to the accomplice, and his position as a witness for the Crown and having the full facts before them can do justice to the accused and the Crown in regard to the extent to which his evidence is accepted . (at 850-1) (emphasis added)

70 The remaining member of the Court, O’Brien CJ of CR D, expressed similar views.

71 In R v Checconi (1988) 34 A Crim R 160 Roden J, with whom the other members of the court agreed, referred to various passages in the decision in Booth before going on to say that:

Those observations were all made as the basis for the decision on admissibility, but they serve also to demonstrate the relevance of the witness' position vis à vis the Crown, in determining the weight that can be given to his evidence, and whether it can safely be acted upon. Accordingly it seems to me that where, as here, the accomplice evidence is critical to verdict, and where, as here, the attack upon that evidence is the crux of the defence case, it is difficult, if not impossible, adequately to present or summarise that case to the jury, without referring to the accomplice's position, a fortiori where, as here, the accomplice has benefited from his agreement to testify for the Crown. (at 171-2) (emphasis added)

72 Booth and Checconi were referred to with approval in the Queensland decision of R v Button [1991] 1 Qd R 552. In that case Byrne J said that the “chances of perjury will be influenced by the accomplice’s circumstances. One holding a pardon or unconditional immunity has not the same reason to implicate an accused person as someone still confronting the prospect of punishment. …It is to eliminate the major incentive to swear falsely that accomplices are sentenced before being called to the witness box”. (at 560)

73 In R v Chai (1992) 27 NSWLR 153 the appellant appealed against his conviction for conspiracy to import not less than a commercial quantity of heroin. The Crown case depended almost entirely upon the evidence of a co-conspirator named Albert Choy, who was a self-confessed international heroin dealer on a massive scale. He had been arrested in Hong Kong and admitted to having been involved, with other persons, in nine consignments from there to the United States of about 300 kilograms of heroin. Following his arrest he entered into a plea bargain agreement with United States authorities. Pursuant to that and various other ancillary agreements, Mr Choy entered a plea of guilty to one offence only in the United States. He was granted an immunity from prosecution in Hong Kong and gave evidence against the appellant pursuant to an immunity extended to him in this country.

74 Badgery-Parker J, with whom Hunt CJ at CL and Allen J agreed, set out the effect that the agreement thus had in the following terms:

Having regard to the ordinary procedures in the United States and the provisions of the agreement, Choy had not at the time when he gave evidence been sentenced in the United States in respect of the one charge to which he had there pleaded guilty, and would not be so sentenced until after the trial of Chai was completed, because he was entitled pursuant to the agreement to have the sentencing court made aware of the nature and extent of his co-operation "including its investigative and prosecutive value, truthfulness, completeness and accuracy". There is room for doubt as to the precise effect of the several agreements. In the tripartite agreement, to which Choy was not a party, the United States agreed that its Attorney responsible for the return of the indictment should enter into an agreement with Choy whereby Choy should agree that he would not seek an "effective sentence of less than ten years imprisonment". In the second agreement, made between Choy and the Hong Kong Government, Choy agreed to plead guilty to a charge which "shall carry a minimum effective sentence of ten years imprisonment”.

In the agreement constituted by the letter, exhibit 1, the United States Attorney agreed "that a sentence of no more than ten years is the appropriate disposition of this case" but it was acknowledged that the matter of sentence was solely within the province of the sentencing court. It does not appear, notwithstanding the provisions of the tripartite agreement, that Choy has in fact agreed not to seek a sentence more lenient than "a minimum effective sentence of ten years imprisonment" and it will apparently be open to him to endeavour to persuade the sentencing judge in New York that the nature and value of his assistance to the authorities in three countries justifies some greater measure of leniency than that. It cannot, I think, be assumed that he has foregone all prospect of a sentence of less than ten years effective minimum. At the same time, since the parties to such agreements obviously cannot fetter the discretion of the sentencing court, the possibility exists that he might receive a sentence in excess of ten years, and in consequence it is obviously in his interest to co-operate fully with the authorities pursuant to the agreement made, in the hope of persuading the sentencing court not to adopt that course. In those circumstances, it was submitted that he was in the position of an accomplice who had not yet been finally dealt with for his part in the offence with which the appellant was charged. So much is beyond contest. Furthermore, Choy's right to immunity was conditional upon his giving "at all times ... complete, truthful and accurate information and testimony"; and should he be judged not to have done so, he could again be exposed to prosecution for many offences.

It would follow that should it be the case that any of the information he had previously given to the authorities was in fact false, there was a real inducement for him to adhere to it rather than to tell the truth, because to do otherwise might cause the authorities to doubt his veracity and revoke the agreement, exposing him to prosecution for all of his offences. (170-1)

75 His Honour went on to consider and reject a submission that the trial judge ought, in the circumstances, to have excluded the evidence of Albert Choy. A little later in the context of considering a complaint about the adequacy of the trial judge’s directions concerning the evidence of Mr Choy, His Honour said:

It is of course abundantly clear that where the evidence of an accomplice is relied upon by the Crown, the jury must be clearly warned of the danger of convicting upon such evidence in the absence of corroboration and in any event unless they are satisfied that the evidence of the accomplice is true and reliable; and further, that where the accomplice has been granted immunity from prosecution, the significance of that in relation to the evaluation of the reliability of the witness' testimony needs to be clearly explained to the jury. Consistently with that, this Court recognised in R v Booth the relevance and importance of evidence revealing to the jury all of the matters relevant to the position of the accomplice vis à vis the Crown which is the party calling him. The corollary is that, such evidence having been given as it was here, the judge should be at pains to make clear to the jury the significance of it. (at 176) (emphasis added)

76 Since the decisions in Booth and Checconi there have been significant legislative changes which bear upon the present subject. Section 21E of the Crimes Act 1914 (Cth) relevantly is in the following terms:

(1) Where a federal sentence, or a federal non-parole period, is reduced by the court imposing the sentence or fixing the non-parole period because the offender has undertaken to co-operate with law enforcement agencies in proceedings, including confiscation proceedings, relating to any offence, the court must:
(a) If the sentence imposed is reduced - specify that the sentence is being reduced for that reason and state the sentence that would have been imposed but for that reduction; and
(b) If the non-parole period is reduced - specify that the non-parole period is being reduced for that reason and state what the period would have been but for that reduction.

(2) Where:
(a) A federal sentence is imposed or a federal non-parole period is fixed; and
(b) The sentence or non-parole period is reduced because the offender has undertaken to co-operate with law enforcement agencies as described in subsection (1); and
(c) After sentence, the offender, without reasonable excuse, does not co-operate in accordance with the undertaking;

The Director of Public Prosecutions may, at any time while the offender is under sentence, if the Director of Public Prosecutions is of the opinion that it is in the interests of the administration of justice to do so, appeal against the inadequacy of the sentence or the non-parole period.

(3) Where an appeal is begun under this section against the inadequacy of a sentence, or of a non-parole period, that was reduced because of a person's undertaking to co-operate with law enforcement agencies, the court hearing the appeal:
(a) If it is satisfied that the person has failed entirely to co-operate in accordance with the undertaking - must substitute for the reduced sentence or reduced non-parole period the sentence, or non-parole period, that would have been imposed on, or fixed in respect of, the person but for that reduction; and
(b) If it is satisfied that the person has failed in part to co-operate in accordance with the undertaking - may substitute for the reduced sentence or reduced non-parole period such a sentence, or such a non-parole period, not exceeding in length the sentence that could be imposed, or the non-parole period that could be fixed, under paragraph (a), as it thinks appropriate.

77 In R v Chen & Others [2002] NSWCCA 174, the appellant was one of a number of persons convicted of being knowingly concerned in the importation of a large quantity of heroin into Australia. The Crown called in its case a co-offender who had been dealt with in accordance with the provisions of s 21E. The Crown led evidence that the witness had signed a written undertaking to co-operate with law enforcement authorities. The jury was also made aware that the Crown could appeal against the inadequacy of the sentence if he failed to co-operate. It was accepted by the appellant that the evidence that the witness was complicit in the offence, had pleaded guilty to it and had received a discount for giving evidence against his co-offender, was admissible. It was submitted however, notwithstanding the absence of any complaint at trial, that the evidence relating to the written undertaking was not admissible. It was contended that the evidence was relevant only to the witness’ credibility and thus contravened s 102 of the Evidence Act.

78 The court in rejecting the argument said that “[t]here is authority of long standing in this Court for the proposition that the true status of such a witness as the witness Chan in the present case is relevant in a sense that extends beyond credibility alone.” (at 16) The Court then cited with approval the passages in the judgment of Lee J in Booth, to which reference was made earlier.

79 The Court went on to say that “[t]he evidence is not tendered as evidence relevant only to a witness’ credibility because it is tendered pursuant to the Crown’s duty of fairness to the accused to lay out before the jury the status of the witness without that status being dragged out in cross-examination in a manner which may not be favourable to the interests of the accused” (at 17). The Court then said:

Even had we been persuaded to the contrary view, we would have held that there had been, in substance, no miscarriage of justice. First , it seems to us that counsel at trial for the appellant could not have been denied the opportunity of cross-examining Chan about the matters of which we have earlier spoken: see section 103 of the Evidence Act . Secondly , had the Crown not led the particular evidence from Chan, and had that evidence thereafter been elicited in cross-examination, the practical position at trial would have been, in our opinion, substantially the same as the practical position achieved in fact. Thirdly , had the relevant material about the witness Chan been led neither in-chief nor in cross-examination, then the jury would have been called upon to consider Chan's reliability upon an incomplete and misleading basis. It is sometimes not possible to avoid such a result, because of some countervailing, or other, legal requirement. But such a misleading presentation of a witness such as Chan is, obviously we would have thought, to be avoided if that can possibly be done. In the present matter it could be done; and was, in our opinion, properly and correctly done. Fourthly , counsel appearing for Chen at the trial did not object to the tender of the written undertaking. The transcript for 18 October 2000 records that it was admitted without objection. This attracts the operation of rule 4 of the Criminal Appeal Rules, requiring leave for the moment to be taken. There is no reason whatever why leave should be given. (at 18)

80 The Court in Chen also referred to this Court’s decision in R v Gonzeles-Betes [2001] NSWCCA 226, in which precisely the same point had been raised and rejected. Greg James J, with whom the other members of the Court agreed, said that:

[s]ince well prior to the Evidence Act 1995 , indeed since R v Booth (1983 8 A Crim R 81, it has been incumbent upon the Crown when utilising the evidence of an indemnified accomplice, or a person to whom some benefit has or might be extended by dint of that witness’ testimony, to reveal that fact in evidence and the true status of the witness, not for the purpose of increasing the witness’ credibility but to enable the jury properly to consider those matters on the question of whether the witness’ credibility is thereby diminished.
I do not understand there to be any provision of the Evidence Act 1995 the effect of which might be that that practice or rule of law should be changed. It would be most unfair to an accused not to put those matters into evidence . (at paras 47-8). (emphasis added)

81 Legislation in similar but not identical terms now exists in respect of State offences. Section 23 of the Crimes (Sentencing Procedure) Act 1999 enables a court to impose a lesser penalty than it would otherwise impose to take account of assistance provided by an offender to the authorities. Section 5DA(1) of the Criminal Appeal Act 1912 enables the Attorney-General or the Director of Public Prosecutions to appeal to the Court of Criminal Appeal against “any sentence imposed on a person that was reduced because the person undertook to assist law enforcement authorities if the person fails wholly or partly to fulfil the undertaking”. The Court may, pursuant to ss (2), vary the sentence thus imposed “if it is satisfied that the person has failed wholly or partly to fulfil the undertaking”. The Court may, in those circumstances, “impose such sentence as it thinks fit”.

82 In Conway and Anor v The Queen (2000) 98 FCR 204 the appellants (S. & W.) engaged two other persons to murder Conway’s wife. S. & W. were each sentenced to 18 years’ imprisonment with an associated non-parole period of 12 years. The sentencing judge indicated that, but for the co-operation provided and promised to the authorities, the sentence in each case would have been 27 years’ imprisonment with a non-parole period of 18 years. S. & W. had each promised to, and did in fact give evidence against the appellants.

83 At the trial of the appellants,

[the trial judge]…told the jury that the sentences imposed upon Steer and Williams had been discounted significantly because of their willingness to cooperate in the prosecution of both Conway and McFie. He summarised the effect of the legislation which obliged a sentencing judge in the Australian Capital Territory to take into account the degree to which an accomplice had cooperated, or undertaken to cooperate, with law enforcement agencies. He also reminded the jury of the promise of cooperation on the part of each of Steer and Williams contained in a written undertaking to provide assistance. He told the jury that the relevant legislation provided that where a sentence had been reduced because of the person’s promised cooperation, the Court was required, in relation to the sentence, to specify the reason for the reduction of sentence, and the sentence that would have been imposed but for that promised cooperation. Finally, he told the jury that where a person does not cooperate in accordance with his undertaking, an appeal can be brought by the Director of Public Prosecutions, and the whole question of his sentence revisited. (at 250)

84 The trial judge also:

…used the expression “Sword of Damocles” when referring to the threat of a Crown appeal against the sentences imposed upon Steer and Williams if they did not adhere to their statements implicating Conway and McFie. The concept of the “Sword of Damocles” was canvassed thoroughly in cross-examination of the accomplices. It was dealt with also in counsel’s addresses. The jury could hardly have failed to understand the danger that an accomplice might adhere to a story implicating others because of the threat of a Crown appeal against sentence. They would readily have appreciated that the fact that the accomplice had already been convicted, and sentenced, did not necessarily diminish this danger. (at 254)

85 In R v Privett [2001] NSWCCA 518 it was argued that the trial judge had erred in rejecting a question designed to elicit from a police officer the precise penalty (namely an order to serve 500 hours community service) which had been imposed upon a witness who had entered into an agreement to give evidence for the Crown. Sully J, with whom the other members of the Court agreed, rejected the argument. His Honour said:

The evidence said to have been wrongly excluded at trial was not admissible unless it satisfied this statutory test. It can be accepted readily, in my opinion, that the section 55 concept of relevance is a very wide one. It is not, however, limitless. In the present case it was, in my opinion, relevant in the statutory sense for the jury to know that Mr. Teale, whose evidence was extremely damaging to the appellant, was giving that damaging evidence in conformity with an agreement struck between him and the prosecuting authorities for their mutual benefit. It was, in my opinion, relevant in the statutory sense for the jury to know that the essence of that agreement, from Mr. Teale's point of view, lay in the fact that the arrangement enabled him to avoid being charged, even as an accessory, let alone as a principal, in the murder of Dr. Rowland; and left him with the additional advantage of avoiding a prison sentence in connection with the greatly reduced charges as to which the prosecuting authorities accepted his agreed pleas of guilty. In my opinion, it was not relevant to go into the kind of detail contemplated by the question which was rejected at trial. To have done so would have entailed raising with the jury unfamiliar and difficult concepts as to the range of possible non-custodial penalties; as to the nature of a community service order; as to the comparative severity of such an order when compared and contrasted with other possible non-custodial penalties; and questions of like kind. It was not, in my opinion, relevant for the jury to be invited, in effect, to become embroiled in the fine detail of Mr. Teale's sentencing proceedings . What was relevant for the jury to understand clearly was that Mr. Teale, and those representing him, had successfully brokered a deal with the prosecution authorities, thereby, put simply, keeping Mr. Teale out of gaol entirely, notwithstanding the admissions, contained in his evidence at trial, of his own connection to the events surrounding the shooting of Dr. Rowland. (at para 41) (emphasis added)

86 It is to be observed that evidence was elicited from the witness Teale himself that as a result of negotiations with the authorities, the murder charge against him had been dropped and that he would not receive a gaol sentence if he pleaded guilty to charges of break and enter.

87 It was in those circumstances that Sully J concluded that the trial judge had not erred in holding that the jury did not need to know the precise details of the penalty imposed upon the witness pursuant to the undertaking to give evidence against the appellant.

88 In R v Stewart (2001) 52 NSWLR 301 this Court considered the scope of the warning which is to be given by a trial judge pursuant to s 165 of the Evidence Act in circumstances in which the chief Crown witness was giving evidence pursuant to an undertaking to do so. Evidence was led from the witness that he had pleaded guilty to participating in an aggravated break enter and steal offence with the appellant. Evidence was also led from him that his sentence had been discounted because of the undertaking into which he had entered to give evidence against the appellant. The details of the sentence which was actually imposed upon him were before the jury. Spigelman CJ said:

His Honour did inform the jury that Mr Braddick's undertaking to give evidence in the trial of the appellant was taken into account on sentence. There was no reference, however, to the fact that Mr Braddick could lose the benefit of that reduction in sentence if he failed to give evidence of the character that he did eventually give. This is not a matter which would necessarily be known to the jury. In my opinion it constituted a failure to satisfy the requirements of s 165(2)(b).

I agree with Hulme J and Howie J that the appellant's submission that the directions actually given amounted to "little more than recitation of a formula" should be rejected. His Honour gave a comprehensive warning which, save in one specific respect, was all that was required. Nevertheless, the matter to which his Honour failed to refer was, in my opinion, of considerable significance.

Section 5DA of the Criminal Appeal Act 1912 is a mechanism by which the benefit on sentence that Mr Braddick had received could be removed from him. A jury would not know that there was any such mechanism unless they were informed of its existence by the trial judge. The only fact that was before the jury was that Mr Braddick had received a benefit. This was both adduced in evidence and referred to in his Honour's summing-up. The jury were never informed that he could lose that benefit. (at 306)

89 Hulme J said:

…The discount Braddick received on his sentence and the fact that discount was liable to be lost if he failed to fulfil his undertaking were matters which were relevant to any assessment of the reliability of Braddick's evidence and, subject as I have said to s 165(3), the judge should have informed the jury of these matters.
…
…However, his Honour made no reference to the risk that the benefit or discount was liable to be lost. And this was important. It is one thing for a jury to think that a witness may have derived a benefit for promising to give evidence. It is quite another, and more important, for the jury to know also that if the evidence given is not to particular effect, a sentence on the witness is liable to be increased. (at 309-10)

90 Howie J took a different approach. Whilst acknowledging that it is generally desirable for a trial judge to specifically raise with the jury the fact that a witness to whom s 165(1)(d) applied, had been given a discount on sentence on the basis of an undertaking to give evidence against the accused, and the effect of a failure to comply with that undertaking, his Honour concluded that that fact did not “necessarily [bring] the evidence within the scope of s 165”. (at 334) In the result however, Hulme J agreed with Howie J that no miscarriage of justice had occurred by reason of the trial judge’s omission and accordingly the appeal was dismissed.

91 Stewart was followed in R v Yammine & Chami [2002] NSWCCA 289 in which the trial judge had also omitted to inform the jury that the witness’ sentence could be increased if he did not give evidence in accordance with his undertaking to give evidence.

92 At the time at which counsel for the appellant sought leave to rely upon the fourth ground of appeal, he was apparently unaware of the fact that trial counsel had in fact cross-examined Mr Evans about certain matters that were relevant to this ground. Counsel, for example, elicited details of the undertaking in which Mr Evans had promised that he would give evidence for the Crown against the appellant. The cross-examination also revealed that Mr Evans had obtained a substantial reduction on sentence by reason of his having agreed to give evidence against the appellant. In those circumstances there is really no substance in the complaint identified in Ground 4(a).

93 Nevertheless as Hodgson JA has observed, the Court was informed that the witness’ sentence was in fact reduced by 50% by reason of his assistance to the authorities. Given that the starting point for the sentence, before the discount, was 15 years’ imprisonment, that meant that the witness had received a benefit of 7½ years’ imprisonment from the otherwise appropriate sentence for that assistance. That was a very significant benefit.

94 Hodgson JA has set out a passage from the transcript which makes it apparent that counsel sought to adduce evidence of the extent of the benefit which the witness received. It is not easy to discern from what is recorded in the transcript what prompted the Crown to take objection to this evidence. For my part, I do not understand how the Crown could reasonably, upon the information furnished to this Court, have taken objection to the question. Clearly the information, upon which the question was based, had been provided to the appellant as part of the Crown’s disclosure obligations. What was critical in the present case was not just the fact that the witness had been given a discount on sentence by reason of his undertaking to give evidence against the appellant and others. The magnitude of the discount was also of critical significance because of its potential to bear upon the pivotal issue in the trial, namely the credibility of Mr Evans. Furthermore, it was only in re-examination that it emerged for the first time that the witness “could be re-sentenced” in the event that he did not “keep that undertaking”. It is far from clear that the jury would have understood precisely what that expression entailed. The evidence as to the consequence of not fulfilling the undertaking, was confined to the cryptic reference that the witness could be “re-sentenced”.

95 There has been a consistent line of authority since Booth to the effect that the Crown has a duty to reveal to the jury all of those matters which are relevant to the position of the witness vis-à-vis the Crown. The underlying assumption in Booth however was that the witness’ status or circumstances had effectively been finally determined prior to his or her being called as a witness. However the landscape has been materially altered by those legislative amendments which empower the Crown to review a sentence, which has been reduced because of assistance to the authorities, in the event that a witness fails to fulfil an undertaking to give evidence. In that sense the position of the witness will not have been completely finalised until the evidence which is the subject of the undertaking has been given (and even, if required, repeated). Those legislative developments have cast an even greater responsibility upon the Crown. It must first of all make full disclosure of all matters which relevantly pertain to the witness to be called. Then, in further discharge of its obligations, it ought to lead in evidence all material of that kind which is relevant in order that the jury is fully informed of those matters which would enable it to make a proper assessment of the witness’ credibility. I respectfully agree with what was said by this Court in Chen that the evidence should be led by the Crown without having to be “dragged out in cross-examination”. I would only add this. Material of the kind to which I have made reference is far too significant for it to emerge, as it did in this case, for the first time only in re-examination. All that the jury was told in evidence in chief in the present case was that the witness was serving a term of imprisonment by reason of his having pleaded guilty to various offences about which he then proceeded to give evidence.

96 The jury was informed, as I have said, that the witness’ sentence had been “substantially” reduced. Such a description would not necessarily have been of much assistance to them. Evidence quantifying the discount would undoubtedly have been more comprehensible to the jury. As the authorities to which I have referred show such evidence is frequently led. In my view it should have been led in the present case by the Crown. The fact that a person has received a benefit in the form of a discount on sentence is, as I have observed, clearly capable of bearing on that person’s credibility because it provides them with an incentive or motive to give false evidence. In the same way the extent of that discount is similarly relevant and important evidence because it is capable of affecting the degree to which the witness has an incentive or motive to give false evidence. The Crown should also in my view have led evidence of the undertaking given by the witness as well as evidence, in clear and explicit terms, as to the consequences of a failure on the part of the witness, to fulfil that undertaking. It is true that counsel for the appellant at trial did not ultimately press the question concerning the extent of the discount which Mr Evans received. In the light of what I have said upon the subject, I do not regard that as fatal to the appellant’s argument. As I have already said, this evidence should have been led by the Crown. Moreover it is not possible to ascertain from the transcript what prompted counsel not to press the question.

97 Had the evidence to which I have referred been led then a warning in appropriate terms, pursuant to s 165 of the Evidence Act, could have been fashioned by the trial judge to accord with that evidence. It was not. The fact that the jury was not informed that the witness could lose the benefit of the discount if he did not fulfil the undertaking was an error of a kind identified by this Court in Stewart. I do not accept that it was sufficient, in the circumstances, that counsel referred to these matters in final addresses. Nor was the jury told that the considerations to which I have referred provided the witness with a powerful incentive (described in Conway as the “Sword of Damocles”) to adhere, in his evidence before the jury, to what he had ultimately said to the police. Nor was the jury told that the evidence may, as a consequence, be unreliable.

98 I have thus come to the conclusion that that part of the Ground 4 which is encapsulated in (b) has been made out. It follows from what I have said that Ground 3 has also been made out.

99 Nothing that I have said is at odds with this court’s decision in Privett. The jury was there informed that a non-custodial sentence had been imposed upon the witness by reason of the “deal” which had been “brokered with the prosecution authorities”. It was of little or no consequence what particular form that the non-custodial sentence took. I do not read that decision to entail the proposition that the extent of the discount to which the witness was entitled by reason of the “deal” thus “brokered” with the Crown, and which he stood to lose if he did not fulfil the undertaking, was not relevant and admissible evidence.

Proviso

100 What then is the consequence of the conclusions at which I have arrived?

101 As Hodgson JA has observed, there was evidence capable of providing corroboration for Mr Evans’ evidence. It was much stronger in relation to count one than other counts. There was also of course the evidence of the offence committed on 9 June 1998 in which the appellant admitted that he was implicated. The totality of this material added considerable weight to the Crown case. The strength of the corroborative material in the Crown case in relation to count 1 depended however, to a not insignificant extent, upon the jury’s acceptance of the evidence given by the vendor of the vehicle that was used in that robbery, that the purchaser had had a beard. The appellant of course gave evidence that he was clean-shaven at the time. Grounds 1 and 2 are directed to the comments made by the Crown Prosecutor and the trial judge respectively about this part of the evidence. I have not overlooked the fact that Grounds 1 and 2 relate only to count 1. Nevertheless it would appear that the Crown placed significant reliance upon the evidence led in respect of count 1 as a means of establishing its case on all counts. The evidence which was the subject of the inappropriate comments was significant because there was no other direct identification evidence in the case. In each instance the offenders’ facial features were disguised by way of balaclavas or ski masks. Moreover an adverse finding in respect of count 1 would have weighed heavily upon the jury’s assessment of the appellant’s overall credibility so far as the other counts were concerned. In those circumstances I am of the view that the error which has been identified was capable of affecting the verdicts on all counts and not just count 1. Nevertheless had this matter stood alone I would not have been inclined to intervene particularly as no complaint was raised about it at the trial.

102 The matters of concern which I have identified in relation to grounds 3 and 4 are however rather more significant. The credibility of Mr Evans was the key issue in the case. His evidence however exemplified the very concerns which courts have repeatedly expressed about “accomplice” evidence. Mr Evans was obliged to admit that he had repeatedly lied, over an extended period of time, in the first nine ERISPS that had been conducted with him by the police. He conceded that he had done so in order to distance himself from any involvement in these offences. When forced to admit that he had been involved, he sought to minimise the extent of his involvement. He admitted that it was only when he came to give his tenth ERISP, that he had decided for the first time that it was time to tell the truth. Even then, he was only prepared to tell the police what they could demonstrate that they already knew about these offences. He also lied at times, in connection with some of the offences, with the intention of substituting other people in his place. He also falsely implicated the appellant’s son in one of the offences. He had of course acquired considerable information about the appellant by reason of his association with his daughter and from residing at his home. That may well have given his evidence a degree of plausibility that it did not deserve. It is not without significance that the jury clearly did not accept his direct evidence in respect of count 2, because the jury acquitted the appellant on that matter. These were all aspects of the case which demonstrated that the witness’ evidence was unreliable in particular aspects. Although whilst not strictly relevant I note in passing the following matters which appear in the trial judge’s Remarks on Sentence. His Honour notes that Mr Evans implicated Les Dormer in three of the offences of which the appellant was convicted. Mr Dormer received a separate trial at which he was acquitted on each charge. His Honour also notes that Glen Chandler was charged with the first matter in respect of which the appellant was convicted. He was found not guilty by direction of the trial judge.

103 It appears to me that if the jury had had before it the evidence which it ought to have had concerning the benefit that Mr Evans had received and was at risk of losing, together with an appropriate warning about it from the trial judge, then that material, may well have been sufficient to tip the balance in relation to its assessment of Mr Evans’ credibility. That is particularly so when those matters are coupled with the evidence, to which I have just referred, that demonstrated, in particular respects, his unreliability. Furthermore when those considerations are taken in conjunction with the complaints made in respect of Grounds 1 and 2, I have come to the conclusion that this a case in which there have been a number of errors of a fundamental kind. I have concluded that the errors to which I have referred have deprived the appellant of a real chance of acquittal that was fairly open to him. Nor am I able to form the view in all the circumstances that the appellant’s conviction was, notwithstanding the errors, nevertheless inevitable. Accordingly there is, in my view, no scope for the application of the proviso.

104 Accordingly I propose that the appeal against conviction should be allowed and that there should be a new trial in respect of count 1 and counts 3 – 7 respectively.

105 SMART AJ: I have had the benefit of reading the judgments of Hodgson JA and Buddin J. I agree with the orders proposed by Buddin J for the reasons which he gives.

106 I make one additional comment. The decision of this Court in R v. Privett NSWCCA 518 should be seen as one dealing with an unusual and particular factual situation. The accomplice had negotiated a deal with the Crown Law Authorities that he would plead guilty to a type of break enter and steal offence and a type of break enter and steal offence in circumstances of aggravation for which he would not be sent to gaol because of the evidence led and that the Crown would drop a charge of accessory to murder.

107 The punishment for the break enter and steal type offences would be non custodial. In return the witness was to give damaging evidence against two of his co-offenders on the murder charge. In those peculiar circumstances the Court held that it was not relevant for the jury to be given details of the non custodial sentences. It was said that it was not relevant for the jury to become embroiled in the "fine detail" of the accomplice's sentencing proceedings. Given what the jury were told there was no miscarriage of justice in the jury not being given details of the non custodial penalties.

108 Privett does not deal with the situation where an offender has been given a reduced gaol sentence because of the assistance he has given the Crown. Telling a jury that a person has received a significant reduction in his gaol term does not tell them a great deal. That lacks the impact and conviction which comes with the supply of detail. To tell a jury that an accomplice or other witness has had his sentence of imprisonment reduced from 15 years to 7½ years for giving evidence against the accused brings home to the jury the extent of the incentive that the witness has to stick to the story he told the Crown, whether true or false. This is cemented by further telling the jury that if the witness does not give the evidence he promised he will then become liable to lose his discount and to serve the full 15 years sentence.

109 Privett provides no justification for withholding from the jury the full details of the accomplice's situation. Such a disclosure is critical to the assessment of the reliability of the accomplice's evidence. Similar considerations apply to a witness who is not an accomplice but achieves a reduction in his sentence on an undertaking to give evidence against an accused in particular terms or to a specified effect.

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Last Modified: 04/15/2003